Literature Review on Provision of Appropriate and Accessible ...

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understood and been willing to engage in sexual contact, they may still
have been abused because of the position or motivation of the other
person (McCarthy, 1999: 69).
<strong>Literature</strong> <strong>Review</strong> on Provision of Appropriate and Accessible
Support to People with an Intellectual Disability who are
McCarthy and Thompson (1997) have progressed this work by drawing
Experiencing Crisis Pregnancy
a distinction between abuse as defined by the law in England and
Wales (for example, prior to the Sexual Offences Act, 2003, laws existed
to afford protection against abuse involving a person with a severe
learning disability, staff abusing a client or someone overpowering the
person using physical violence) and abuse as defined by inequality in a
relationship, significant difference in ability levels or where one person’s
sexual needs are met at the expense of the other’s.
McCarthy (1999) argues that laws designed to relate to adults without
learning disabilities may be applied to adults with learning disabilities
without any consideration given to the limited capabilities and pressures
that they may have faced. This is particularly so in cases of rape or sexual
abuse, which often stand or fall on the issue of consent. Consent will
often be interpreted very simplistically, with no account being taken of
why a person with learning disabilities may have consented. O’Hara &
Martin (2001) assert that the lack of power many people with intellectual
disability face in their relationships may make it difficult to be sure
whether consent has truly been given.
3.5 Approaches to determining capacity
Three broad approaches that might be useful in assessing capacity have
been differentiated (Murphy and Clare, 2003):
Outcome approach argues that where an individual makes a
decision that differs from most other people’s, his or her capacity
should be called into question.
Diagnostic (status) approach involves inferences based on a
person’s membership of a specific population sharing some
characteristic, such as gender, age, ‘race’ or sexual orientation.
Historically this approach has been used to limit the decisionmaking
of men and women who need or receive treatment and/or
support because of a ‘mental disorder’.